Citation Nr: 0809357
Decision Date: 03/20/08 Archive Date: 04/03/08
DOCKET NO. 05-31 388 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service connection for intervertebral disc
disease of the lumbar spine.
2. Entitlement to service connection for degenerative joint
disease of the left elbow.
3. Entitlement to service connection for a left ankle
condition.
4. Entitlement to service connection for a left foot
condition.
5. Entitlement to service connection for a cervical spine
condition.
6. Entitlement to service connection for hives.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. J. O'Mara, Associate Counsel
INTRODUCTION
The veteran had active service from July 1956 to July 1958.
These matters are before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Albuquerque, New Mexico, which denied service connection for
the claims on appeal.
In December 2007, the veteran testified during a hearing at
the RO before the undersigned Veterans Law Judge; a
transcript of the hearing is of record.
FINDING OF FACT
Intervertebral disc disease of the lumbar spine, degenerative
joint disease of the left elbow, a left ankle condition, a
left foot condition, a cervical spine condition, and hives
have not been shown to have been incurred in or aggravated by
service.
CONCLUSION OF LAW
The criteria to establish service connection for
intervertebral disc disease of the lumbar spine, degenerative
joint disease of the left elbow, a left ankle condition, a
left foot condition, a cervical spine condition, and hives
have not been met. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307,
3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
Before addressing the merits of the claims, the Board is
required to address the duty to notify and duty to assist
imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. §
3.159.
VA has a duty to notify a claimant and his representative, if
any, of the information and evidence needed to substantiate a
claim. This notification obligation was accomplished by way
of a letter from the RO to the veteran dated in July 2004.
This letter effectively satisfied the notification
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) by: (1) informing the veteran about the information
and evidence not of record that was necessary to substantiate
the claims; (2) informing the veteran about the information
and evidence VA would seek to provide; (3) informing the
veteran about the information and evidence he was expected to
provide; and (4) requesting the veteran provide any evidence
in his possession that pertains to his claims. A March 2006
letter advised the veteran of how VA assigns disability
ratings and effective dates and complies with the holding of
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Second, VA has a duty to assist a veteran in obtaining
evidence necessary to substantiate a claim. In an October
2004 response to the RO's request for the veteran's service
medical records, the National Personnel Records Center (NPRC)
indicated that the veteran's service medical records were not
on file and were likely destroyed by fire. In this situation,
VA has a heightened duty to assist the veteran in development
of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367
(1991). In May 2007, the RO made a formal finding that the
veteran's service medical records were unavailable and stated
that the records had been requested from the NPRC and the
veteran had been requested to submit any records in his
possession; however, no records were available. In a May 2007
letter, the RO informed the veteran that his service medical
records were unavailable and requested that he submit
alternative records to show that he incurred an injury or
disease in service.
During his December 2007 Board hearing, the undersigned
engaged the veteran in a lengthy colloquy towards
ascertaining if there was any further information that could
substantiate the claims. See Stuckey v. West, 13 Vet. App.
163 (1999); Constantino v. West, 12 Vet. App. 517 (1999)
((Relative to the regulatory duty of hearing officers under
38 C.F.R. § 3.103(c)(2), to suggest the submission of
evidence that the claimant may have overlooked and which
would be supportive of the claim.)).
Inquiry was directed towards the veteran had any contact with
any of his fellow former service members (including through
Internet research); letters to or from family members or
friends with contemporaneous information regarding the in-
service incidents; post-service employment physical
examinations and medical records; and other relevant
information. In substance, the veteran testified that he had
no further evidence to submit, as the information was either
destroyed or not available. The veteran was afforded an
additional period of 30 days within which to submit any
further information. However, no further evidence was
submitted.
Therefore, the heightened duty-to-assist has been met here,
as the evidence reflects that further efforts to obtain the
veteran's service medical records would be futile, see 38
C.F.R. § 3.159(c)(2) (2007) (VA will end efforts to obtain
federal records where federal department or agency advises
that requested records do not exist or custodian does not
have them), and neither the veteran nor his representative
have indicated any potential alternative sources of evidence.
Evidence of record includes VA outpatient treatment records
and private medical records, and a photo. Additionally, the
veteran presented testimony at a Board hearing in support of
his claims and the transcript of the hearing is of record.
While the veteran was not afforded a VA examination, in this
circumstance, there is no duty on the part of VA to provide a
medical examination, because as in Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003), the veteran has been advised of
the need to submit competent medical evidence indicating that
he has the disorders in question, and further substantiating
evidence suggestive of a linkage between his active service
and the current disorders, if shown. The veteran has not done
so, and no evidence thus supportive has otherwise been
obtained. Here, as in Wells, the record in its whole, after
due notification, advisement, and assistance to the veteran
under the VCAA, does not contain competent evidence to
suggest that the disorders are related to the veteran's
military service.
Given these matters of record, there is no competent evidence
that "the disability or symptoms may be associated with the
claimant's active military . . . service." 38 U.S.C.A. §
5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002)
(Holding that under 38 U.S.C.A. § 5103A(d)(2), VA was to
provide a medical examination as "necessary to make a
decision on a claim, where the evidence of record, taking
into consideration all information and lay or medical
evidence, [including statements of the claimant]," and where,
the claimant had been diagnosed to have tinnitus, and had
proffered competent lay evidence that he had had continuous
symptoms of the disorder [i.e., ringing in the ears] since
his discharge. Because there was evidence of record
satisfying two of the requirements of the statute, i.e.,
competent evidence of a current disability and evidence
indicating an association between the appellant's disability
and his active service, but there was not of record, as
relied upon in part by the Board in denying his claim,
competent medical evidence addressing whether there is a
nexus between his tinnitus and his active service, VA was to
provide the claimant with a medical "nexus" examination).
The veteran and his representative have not made the RO or
the Board aware of any additional evidence that needs to be
obtained in order to fairly decide his claims. As such, all
relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained and the case is ready
for appellate review.
Merits of the Claims
During the December 2007 Board hearing, the veteran stated
that while he was in service, he fell from a tank and injured
his lumbar spine, left elbow, cervical spine, left ankle, and
left foot. He also testified that he came in contact with
poison ivy while in service, which resulted in hives that he
continues to get from time to time. Having carefully
considered the claims in light of the record and the
applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claims and the
appeal will be denied.
The benefit of the doubt rule provides that the veteran will
prevail in a case where the positive evidence is in a
relative balance with the negative evidence. Therefore, the
veteran prevails in his claims when (1) the weight of the
evidence supports the claim or (2) when the evidence is in
equipoise. It is only when the weight of the evidence is
against the veteran's claim that the claim must be denied. 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease contracted in the line of duty
in the active military, naval or air service. 38 U.S.C.A. §
1131; 38 C.F.R. § 3.303. That an injury incurred in service
alone is not enough. There must be chronic disability
resulting from that injury. If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that a
disease was incurred in service. 38 C.F.R. § 3.303(d).
Generally, to prove service connection, the record must
contain: (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances, lay testimony
of an in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury. Pond
v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet.
App. 498 (1995).
Service connection may presumed, for certain chronic
diseases, such as arthritis, which are manifested to a
compensable degree (10 percent for arthritis) within a
prescribed period after discharge from service (one year for
arthritis), even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by probative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
A. Lumbar Spine, Left Elbow, Left Ankle, and Hives
Regarding the veteran's left elbow, a November 1994 non-VA
medical record from County of Santa Barbara Health Care shows
a diagnosis of severe degenerative joint disease of the left
elbow. Regarding the veteran's lumbar spine, a May 2002 non-
VA medical record from A.Z., M.D. shows the veteran
complained of back pain for years and reported a back injury
years ago. He also reported two subsequent injuries to the
back after the reported initial injury. Another May 2002
record shows a diagnosis of degenerative joint disease of the
lumbosacral spine and rule out radiculopathy. A March 2003
non-VA medical record from J.F., M.D. shows a diagnosis of
relatively mild intervertebral disc disease at all levels of
the lumbar spine. An August 2003 VA treatment record shows a
diagnosis of back pain with suggestion of radiculopathy as
well as a magnetic resonance imaging (MRI) suggestive of
neural foraminal stenosis on the right at the level of L5-S1.
Regarding the veteran's claim of service connection for
hives, an April 2003 non-VA record from A.Z., M.D. shows the
veteran complained of rash on both hands on and off for three
weeks. The diagnosis was possible allergic dermatitis and a
May 2003 record shows a diagnosis of rash. Regarding the
veteran's left ankle, a June 2004 non-VA treatment record
from A.Z., M.D. shows the veteran injured himself in a fall.
The diagnosis was left ankle pain. June 2004 MRI results
reveal an osteochondral injury of the talus and a torn
anterior talofibular ligament and diffuse soft tissue edema
of the left ankle.
Based on the above evidence, the veteran has current
diagnoses of the lumbar spine, left elbow, left ankle, and a
skin condition (claimed as hives). The remaining question,
therefore, is whether there is evidence of an in-service
occurrence of an injury or disease and medical evidence of a
nexus or relationship between the current disabilities and
the in-service disease or injury.
As noted previously, the veteran's service medical records
are unavailable and are not of record. The veteran submitted
photos of him standing beside a tank, which he asserts is the
type of tank from which he fell while in service. Although
the veteran has submitted these photos, there is no evidence
that the veteran actually fell from this tank while he was in
service. Therefore, the veteran has not submitted any
alternative evidence showing that he incurred any injuries or
disabilities in service to the lumbar spine, left elbow, left
ankle, and a skin condition (claimed as hives).
More significantly, there is no competent medical evidence of
a nexus between the veteran's current disabilities of the
lumbar spine, left elbow, left ankle, and skin and his
service. By "competent medical evidence" is meant in part
that which is provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). None of
the medical evidence of record relates the veteran's lumber
spine disability, left elbow disability, left ankle
disability, and skin disability to any event or incident
during active military duty.
Nor is there any evidence of continuity of symptomatology.
The first complaint of a left elbow disability is shown in
November 1994, and the first complaint of a back disability,
left ankle disability, and a hives disorder is shown a May
2002 record and medical records thereafter. These complaints
and subsequent diagnoses are approximately 36 years after the
veteran's separation from service (regarding the veteran's
left elbow) and 44 years after the veteran's separation from
service (regarding the veteran's lumbar spine, left ankle,
and hives disorder). This gap in evidence constitutes
negative evidence that tends to disprove the veteran's claims
that his current lumbar spine, left elbow, left ankle, and
hives disabilities resulted from his service. See Forshey v.
West, 12 Vet. App. 71, 74 (1998); aff'd sub nom, Forshey v.
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that
the definition of evidence encompasses "negative evidence"
which tends to disprove the existence of an alleged fact). In
addition, as the veteran's intervertebral disc disease of the
lumbar spine and degenerative joint disease of the left elbow
manifested more than one year after his discharge from
service, service connection for these disabilities on a
presumptive basis due to chronic disabilities is not
warranted. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307,
3.309 (2007).
Without evidence of a disability during service and either
competent medical evidence of a nexus or continuity of
symptomatology, service connection for intervertebral disc
disease of the lumbar spine, degenerative joint disease of
the left elbow, a left ankle condition, and hives is not
warranted. Therefore, as the preponderance of the evidence is
against the claims, the benefit of the doubt rule does not
apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
B. Cervical Spine and Left Foot Disorder
The veteran has claimed service connection for a cervical
spine condition and a left foot disorder. However, there is
no evidence in the record that the veteran has the
disabilities for which he is claiming service connection. In
this regard, the medical evidence of record is devoid for any
complaint, treatment, or diagnosis of a cervical spine
condition or a left foot disorder. Therefore, the veteran has
not been shown to have a current disability of a cervical
spine condition or a left foot disorder. As indicated above,
Congress has specifically limited entitlement to service
connection for disease or injury incurred or aggravated in
service to cases where such incidents have resulted in a
disability. See 38 U.S.C.A. § 1131. Hence, where, as here,
there is no competent medical evidence establishing that the
veteran has the disabilities for which service connection is
sought, there can be no valid claims for service connection
for those disabilities. See Gilpin v. West, 155 F.3d 1353
(Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). Hence, service connection for a cervical spine
condition and a left foot disorder must be denied.
Because the preponderance of the evidence is against the
claims, the benefit of the doubt rule does not apply. 38
U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Service connection for intervertebral disc disease of the
lumbar spine is denied.
Service connection for degenerative joint disease of the left
elbow is denied.
Service connection for a left ankle condition is denied.
Service connection for a left foot condition is denied.
Service connection for a cervical spine condition is denied.
Service connection for hives is denied.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs